This month marks two years since the major amendment of Federal Rule of Civil Procedure 26(b)(1) went into effect. This Rule, governing the scope of discovery, now states:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
The amendment deleted the phrase allowing all discovery that is “reasonably calculated to lead to the discovery of admissible evidence,” and brought a reenergized focus to proportionality, with the six factors above. While scholars can debate whether and to what extent proportionality has always been a part of Rule 26, practitioners have had a more difficult time explaining why requested discovery is or is not proportional. This blog post seeks to offer practical suggestions for proving proportionality in motions to compel.
The most important step attorneys must take in showing proportionality is supporting their positions with evidence. Gone are the days when attorneys could conclusorily state, “This case is worth $10 million and we need every piece of discovery conceivable,” or “All of the requested discovery is overbroad, burdensome, and oppressive,” without a more particularized showing. As recent case law shows, attorneys achieve greater success on motions to compel when they support their motions with declarations or other evidence providing information on the relevant proportionality factors. Considerations for each factor are given below.
The Importance of the Issues at Stake in the Action
Does the requested discovery relate to some nonmonetary public policy issue?
Does the requested discovery impact the case such that third parties’ rights would be affected?
The Amount in Controversy
Will the requested discovery cost comprise a large percentage of or exceed the stated damages in the case?
Have preliminary searches been run to determine approximately how many hours of attorney time will be expended to produce the requested discovery?
The Parties’ Resources
Has the resisting party objected to the discovery because of an inability to pay?
Is the requesting party using discovery to abuse the other party into settlement?
The Importance of the Discovery in Resolving the Issues
Is discovery requested on an issue that is not yet a claim or defense?
Is the requested discovery available from any other source?
Is this a case in which claims will likely be shown through substantial indirect circumstantial evidence?
How closely related is the discovery to the disputed issues in the case?
Will the opposing party stipulate to facts the requested discovery would show?
Has the resisting party admitted in Court or in a public forum that the issues on which discovery is sought are important?
Whether the Burden or Expense of the Proposed Discovery Outweighs Its Likely Benefit
Has the opposing party complied with its responsibility to preserve evidence? If not, claims of burden may be less credible.
Has the resisting party offered alternative evidence in place of the requested discovery, and would any alternative be satisfactory?
Has the resisting party produced evidence that makes the requested evidence irrelevant to the case?
Has the requesting party spent substantial resources on producing its own discovery?
Has the discovery, in this case, reached a point of diminishing returns?
While no single factor is determinative when analyzing proportionality, parties should provide particularized showings for the factors that are most relevant to their case. If parties do not include an explanation of each factor, they should at least include discussion on the last factor, which “may combine all the previous factors into a final analysis of burdens versus benefits.” Arrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, No. 5:15-CV-37-FL, 2017 WL 876266, at *5 (E.D.N.C. Mar. 3, 2017).
At the two-year anniversary of the updated standard, courts want to see that parties are aware of the updated standard and that they have carefully crafted targeted discovery or explanatory objections to such discovery. Parties now have a shared responsibility to consider the proportionality factors in serving and responding to discovery requests. In sum, a party must provide evidence to support its arguments in a motion to compel. By using the proportionality factors above, practitioners can show the court why discovery should or should not be granted under the Rules.
SeeArrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, No. 5:15-CV-37-FL, 2017 WL 876266, at *6 (E.D.N.C. Mar. 3, 2017) (“A party must do more than just assert that the burden will be expensive; it should ‘provide sufficient detail in terms of time, money[,] and procedure required to produce the requested documents.’” (quoting Ashmore v. Allied Energy, Inc., No. 8:14-CV-00227-JMC, 2016 WL 301169, at *3 (D.S.C. Jan. 25, 2016))).
 Courts carefully scrutinize discovery requests in matters concerning employment practices, free speech, and other matters in the public policy sphere. Oxbow Carbon & Minerals LLC v. Union Pac. R.R. Co., No. 11-CV-1049 (PLF/GMH), 2017 WL 4011136, at *4 (D.D.C. Sept. 11, 2017) (citing Fed. R. Civ. P. 26 advisory committee’s note).
Id. (finding this factor weighed in favor of the party moving for discovery where a favorable ruling in the case, based in part on this discovery, would affect all of America’s shippers and consumers).
First Niagara Risk Mgmt., Inc. v. Folino, 317 F.R.D. 23, 28 (E.D. Pa. 2016) (holding that when the amount in controversy is not yet known, this factor weighs against granting discovery).
 According to the Advisory Committee Notes, in such a case, the burden of responding to discovery is properly with the party with more information.
Does I-XIX v. Boy Scouts of Am., No. 1:13-CV-00275-BLW, 2017 WL 3841902, at *6 (D. Idaho Sept. 1, 2017), reconsideration denied sub nom. Doe I-XIX v. Boy Scouts of Am., No. 1:13-CV-00275-BLW, 2017 WL 6029591 (D. Idaho Dec. 5, 2017) (granting discovery where the resisting party argued that production would require hours of manual searching, but the resisting party was able to produce similar documents in a previous lawsuit, and it was known that the legal department of that party maintained electronic tracking systems separate from a manual searching system).
 This factor is not meant to allow unlimited discovery from a large corporation, but is instead meant to ensure that discovery is not used to “wage a war of attrition or as a device to coerce a party,” as explained in the Advisory Committee Notes.
Oxbow Carbon, 2017 WL 4011136, at *5 (finding it difficult to believe that where the CEO publicly commented on the importance and magnitude of the litigation, the CEO would not have unique information relevant to the litigation in his possession).
Wagoner v. Lewis Gale Med. Ctr., LLC, 2016 WL 3893135, at *3 (W.D. Va. July 14, 2016)
(finding there was no undue burden where resisting party “did not preserve e-mails in an readily searchable format, making it costly to produce relevant e-mails when faced with a lawsuit”).
Gilead Scis., Inc. v. Merck & Co, Inc., No. 5:13-CV-04057-BLF, 2016 WL 146574, at *1 (N.D. Cal. Jan. 13, 2016) (denying discovery where the resisting party had produced discovery negating the information sought).
Oxbow Carbon, 2017 WL 4011136, at *5 (finding it was relevant that the requesting party had spent over $1 million on reviewing and producing its own documents, and the requested discovery would have cost only $142,000 from the resisting party).
Updike v. Clackamas County, No. 3:15-CV-00723-SI, 2016 WL 111424, at *1 (D. Or. Jan. 11, 2016) (“There is a tension, however, among the objectives of Rule 1. As more discovery is obtained, more is learned. But at some point, discovery yields only diminishing returns and increasing expenses. In addition, as more discovery is taken, the greater the delay in resolving the dispute. Finding a just and appropriate balance is the goal, and it is one of the key responsibilities of the court in managing a case before trial to assist the parties in achieving that balance.”).
Fulton v. Livingston Fin. LLC, No. C15-0574JLR, 2016 WL 3976558, at *7 (W.D. Wash. July 25, 2016) (sanctioning a party in part for citing case law that analyzed Federal Rule of Civil Procedure 26 before the 2015 amendments).
Salazar v. McDonald’s Corp., No. 14-CV-02096-RS (MEJ), 2016 WL 736213, at *2 (N.D. Cal. Feb. 25, 2016).
Ann Motl is a patent litigation associate in the Minneapolis office of Fish & Richardson. Prior to joining Fish, she served as a Judicial Law Clerk for a two-year term for Magistrate Judge Hildy Bowbeer of the United States District Court for the District of Minnesota. With her engineering background and clerkship experience, she...